Federalist Paper No. 44
This article was edited and reviewed by FindLaw Attorney Writers | Last reviewed June 16, 2014
This essay by James Madison, published under a pseudonym in 1788, describes restrictions placed on states under the new Constitution.
A FIFTH class of provisions in favor of the federal authorityconsists of the following restrictions on the authority of theseveral States:1. ``No State shall enter into any treaty,alliance, or confederation; grant letters of marque and reprisal;coin money; emit bills of credit; make any thing but gold andsilver a legal tender in payment of debts; pass any bill ofattainder, ex-post-facto law, or law impairing the obligation ofcontracts; or grant any title of nobility. ''The prohibitionagainst treaties, alliances, and confederations makes a part ofthe existing articles of Union; and for reasons which need noexplanation, is copied into the new Constitution. The prohibitionof letters of marque is another part of the old system, but issomewhat extended in the new. According to the former, letters ofmarque could be granted by the States after a declaration of war;according to the latter, these licenses must be obtained, as wellduring war as previous to its declaration, from the government ofthe United States. This alteration is fully justified by theadvantage of uniformity in all points which relate to foreignpowers; and of immediate responsibility to the nation in allthose for whose conduct the nation itself is to be responsible.
The right of coining money, which is here taken from the States,was left in their hands by the Confederation, as a concurrentright with that of Congress, under an exception in favor of theexclusive right of Congress to regulate the alloy and value. Inthis instance, also, the new provision is an improvement on theold. Whilst the alloy and value depended on the generalauthority, a right of coinage in the particular States could haveno other effect than to multiply expensive mints and diversifythe forms and weights of the circulating pieces. The latterinconveniency defeats one purpose for which the power wasoriginally submitted to the federal head; and as far as theformer might prevent an inconvenient remittance of gold andsilver to the central mint for recoinage, the end can be as wellattained by local mints established under the general authority.
The extension of the prohibition to bills of credit must givepleasure to every citizen, in proportion to his love of justiceand his knowledge of the true springs of public prosperity. Theloss which America has sustained since the peace, from thepestilent effects of paper money on the necessary confidencebetween man and man, on the necessary confidence in the publiccouncils, on the industry and morals of the people, and on thecharacter of republican government, constitutes an enormous debtagainst the States chargeable with this unadvised measure, whichmust long remain unsatisfied; or rather an accumulation of guilt,which can be expiated no otherwise than by a voluntary sacrificeon the altar of justice, of the power which has been theinstrument of it. In addition to these persuasiveconsiderations, it may be observed, that the same reasons whichshow the necessity of denying to the States the power ofregulating coin, prove with equal force that they ought not to beat liberty to substitute a paper medium in the place of coin. Hadevery State a right to regulate the value of its coin, theremight be as many different currencies as States, and thus theintercourse among them would be impeded; retrospectivealterations in its value might be made, and thus the citizens ofother States be injured, and animosities be kindled among theStates themselves. The subjects of foreign powers might sufferfrom the same cause, and hence the Union be discredited andembroiled by the indiscretion of a single member. No one of thesemischiefs is less incident to a power in the States to emit papermoney, than to coin gold or silver. The power to make any thingbut gold and silver a tender in payment of debts, is withdrawnfrom the States, on the same principle with that of issuing apaper currency. Bills of attainder, ex-post-facto laws, and lawsimpairing the obligation of contracts, are contrary to the firstprinciples of the social compact, and to every principle of soundlegislation. The two former are expressly prohibited by thedeclarations prefixed to some of the State constitutions, and allof them are prohibited by the spirit and scope of thesefundamental charters. Our own experience has taught us,nevertheless, that additional fences against these dangers oughtnot to be omitted. Very properly, therefore, have the conventionadded this constitutional bulwark in favor of personal securityand private rights; and I am much deceived if they have not, inso doing, as faithfully consulted the genuine sentiments as theundoubted interests of their constituents. The sober people ofAmerica are weary of the fluctuating policy which has directedthe public councils. They have seen with regret and indignationthat sudden changes and legislative interferences, in casesaffecting personal rights, become jobs in the hands ofenterprising and influential speculators, and snares to themore-industrious and lessinformed part of the community. Theyhave seen, too, that one legislative interference is but thefirst link of a long chain of repetitions, every subsequentinterference being naturally produced by the effects of thepreceding. They very rightly infer, therefore, that some thoroughreform is wanting, which will banish speculations on publicmeasures, inspire a general prudence and industry, and give aregular course to the business of society. The prohibition withrespect to titles of nobility is copied from the articles ofConfederation and needs no comment. 2. ``No State shall, withoutthe consent of the Congress, lay any imposts or duties on importsor exports, except what may be absolutely necessary for executingits inspection laws, and the net produce of all duties andimposts laid by any State on imports or exports, shall be for theuse of the treasury of the United States; and all such laws shallbe subject to the revision and control of the Congress. No Stateshall, without the consent of Congress, lay any duty on tonnage,keep troops or ships of war in time of peace, enter into anyagreement or compact with another State, or with a foreign power,or engage in war unless actually invaded, or in such imminentdanger as will not admit of delay. ''The restraint on the powerof the States over imports and exports is enforced by all thearguments which prove the necessity of submitting the regulationof trade to the federal councils. It is needless, therefore, toremark further on this head, than that the manner in which therestraint is qualified seems well calculated at once to secure tothe States a reasonable discretion in providing for theconveniency of their imports and exports, and to the UnitedStates a reasonable check against the abuse of this discretion.
The remaining particulars of this clause fall within reasoningswhich are either so obvious, or have been so fully developed,that they may be passed over without remark. The SIXTH and lastclass consists of the several powers and provisions by whichefficacy is given to all the rest. 1. Of these the first is, the``power to make all laws which shall be necessary and proper forcarrying into execution the foregoing powers, and all otherpowers vested by this Constitution in the government of theUnited States, or in any department or officer thereof. ''Fewparts of the Constitution have been assailed with moreintemperance than this; yet on a fair investigation of it, nopart can appear more completely invulnerable. Without theSUBSTANCE of this power, the whole Constitution would be a deadletter. Those who object to the article, therefore, as a part ofthe Constitution, can only mean that the FORM of the provision isimproper. But have they considered whether a better form couldhave been substituted? There are four other possible methodswhich the Constitution might have taken on this subject. Theymight have copied the second article of the existingConfederation, which would have prohibited the exercise of anypower not EXPRESSLY delegated; they might have attempted apositive enumeration of the powers comprehended under the generalterms ``necessary and proper''; they might have attempted anegative enumeration of them, by specifying the powers exceptedfrom the general definition; they might have been altogethersilent on the subject, leaving these necessary and proper powersto construction and inference. Had the convention taken thefirst method of adopting the second article of Confederation, itis evident that the new Congress would be continually exposed, astheir predecessors have been, to the alternative of construingthe term ``EXPRESSLY'' with so much rigor, as to disarm thegovernment of all real authority whatever, or with so muchlatitude as to destroy altogether the force of the restriction.
It would be easy to show, if it were necessary, that no importantpower, delegated by the articles of Confederation, has been orcan be executed by Congress, without recurring more or less tothe doctrine of CONSTRUCTION or IMPLICATION. As the powersdelegated under the new system are more extensive, the governmentwhich is to administer it would find itself still more distressedwith the alternative of betraying the public interests by doingnothing, or of violating the Constitution by exercising powersindispensably necessary and proper, but, at the same time, notEXPRESSLY granted. Had the convention attempted a positiveenumeration of the powers necessary and proper for carrying theirother powers into effect, the attempt would have involved acomplete digest of laws on every subject to which theConstitution relates; accommodated too, not only to the existingstate of things, but to all the possible changes which futuritymay produce; for in every new application of a general power, thePARTICULAR POWERS, which are the means of attaining the OBJECT ofthe general power, must always necessarily vary with that object,and be often properly varied whilst the object remains the same.
Had they attempted to enumerate the particular powers or meansnot necessary or proper for carrying the general powers intoexecution, the task would have been no less chimerical; and wouldhave been liable to this further objection, that every defect inthe enumeration would have been equivalent to a positive grant ofauthority. If, to avoid this consequence, they had attempted apartial enumeration of the exceptions, and described the residueby the general terms, NOT NECESSARY OR PROPER, it must havehappened that the enumeration would comprehend a few of theexcepted powers only; that these would be such as would be leastlikely to be assumed or tolerated, because the enumeration wouldof course select such as would be least necessary or proper; andthat the unnecessary and improper powers included in theresiduum, would be less forcibly excepted, than if no partialenumeration had been made. Had the Constitution been silent onthis head, there can be no doubt that all the particular powersrequisite as means of executing the general powers would haveresulted to the government, by unavoidable implication. No axiomis more clearly established in law, or in reason, than thatwherever the end is required, the means are authorized; wherevera general power to do a thing is given, every particular powernecessary for doing it is included. Had this last method,therefore, been pursued by the convention, every objection nowurged against their plan would remain in all its plausibility;and the real inconveniency would be incurred of not removing apretext which may be seized on critical occasions for drawinginto question the essential powers of the Union. If it be askedwhat is to be the consequence, in case the Congress shallmisconstrue this part of the Constitution, and exercise powersnot warranted by its true meaning, I answer, the same as if theyshould misconstrue or enlarge any other power vested in them; asif the general power had been reduced to particulars, and any oneof these were to be violated; the same, in short, as if the Statelegislatures should violate the irrespective constitutionalauthorities. In the first instance, the success of the usurpationwill depend on the executive and judiciary departments, which areto expound and give effect to the legislative acts; and in thelast resort a remedy must be obtained from the people who can, bythe election of more faithful representatives, annul the acts ofthe usurpers. The truth is, that this ultimate redress may bemore confided in against unconstitutional acts of the federalthan of the State legislatures, for this plain reason, that asevery such act of the former will be an invasion of the rights ofthe latter, these will be ever ready to mark the innovation, tosound the alarm to the people, and to exert their local influencein effecting a change of federal representatives. There being nosuch intermediate body between the State legislatures and thepeople interested in watching the conduct of the former,violations of the State constitutions are more likely to remainunnoticed and unredressed. 2. ``This Constitution and the lawsof the United States which shall be made in pursuance thereof,and all treaties made, or which shall be made, under theauthority of the United States, shall be the supreme law of theland, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrarynotwithstanding. ''The indiscreet zeal of the adversaries to theConstitution has betrayed them into an attack on this part of italso, without which it would have been evidently and radicallydefective. To be fully sensible of this, we need only suppose fora moment that the supremacy of the State constitutions had beenleft complete by a saving clause in their favor. In the firstplace, as these constitutions invest the State legislatures withabsolute sovereignty, in all cases not excepted by the existingarticles of Confederation, all the authorities contained in theproposed Constitution, so far as they exceed those enumerated inthe Confederation, would have been annulled, and the new Congresswould have been reduced to the same impotent condition with theirpredecessors. In the next place, as the constitutions of some ofthe States do not even expressly and fully recognize the existingpowers of the Confederacy, an express saving of the supremacy ofthe former would, in such States, have brought into questionevery power contained in the proposed Constitution. In the thirdplace, as the constitutions of the States differ much from eachother, it might happen that a treaty or national law, of greatand equal importance to the States, would interfere with some andnot with other constitutions, and would consequently be valid insome of the States, at the same time that it would have no effectin others. In fine, the world would have seen, for the firsttime, a system of government founded on an inversion of thefundamental principles of all government; it would have seen theauthority of the whole society every where subordinate to theauthority of the parts; it would have seen a monster, in whichthe head was under the direction of the members. 3. ``TheSenators and Representatives, and the members of the severalState legislatures, and all executive and judicial officers, bothof the United States and the several States, shall be bound byoath or affirmation to support this Constitution. ''It has beenasked why it was thought necessary, that the State magistracyshould be bound to support the federal Constitution, andunnecessary that a like oath should be imposed on the officers ofthe United States, in favor of the State constitutions. Severalreasons might be assigned for the distinction. I content myselfwith one, which is obvious and conclusive. The members of thefederal government will have no agency in carrying the Stateconstitutions into effect. The members and officers of the Stategovernments, on the contrary, will have an essential agency ingiving effect to the federal Constitution. The election of thePresident and Senate will depend, in all cases, on thelegislatures of the several States. And the election of the Houseof Representatives will equally depend on the same authority inthe first instance; and will, probably, forever be conducted bythe officers, and according to the laws, of the States. 4. Amongthe provisions for giving efficacy to the federal powers might beadded those which belong to the executive and judiciarydepartments: but as these are reserved for particular examinationin another place, I pass them over in this. We have nowreviewed, in detail, all the articles composing the sum orquantity of power delegated by the proposed Constitution to thefederal government, and are brought to this undeniableconclusion, that no part of the power is unnecessary or improperfor accomplishing the necessary objects of the Union. Thequestion, therefore, whether this amount of power shall begranted or not, resolves itself into another question, whether ornot a government commensurate to the exigencies of the Unionshall be established; or, in other words, whether the Unionitself shall be preserved.